THIRD DIVISION

[G.R. No. 154994. June 28, 2005.]

JOYCELYN PABLO-GUALBERTO , petitioner, vs . CRISANTO RAFAELITO

GUALBERTO V , respondent.

[G.R. No. 156254. June 28, 2005.]

CRISANTO RAFAELITO G. GUALBERTO V , petitioner, vs . COURT OF

APPEALS; Hon. HELEN B. RICAFORT, Presiding Judge, Regional
Trial Court Parañaque City, Branch 260; and JOYCELYN D. PABLO-
GUALBERTO , respondents.

DECISION

PANGANIBAN , J : p

When love is lost between spouses and the marriage inevitably results in separation,
the bitterest tussle is often over the custody of their children. The Court is now tasked to
settle the opposing claims of the parents for custody pendente lite of their child who is
less than seven years of age. There being no su cient proof of any compelling reason to
separate the minor from his mother, custody should remain with her.
The Case
Before us are two consolidated petitions. The first is a Petition for Review 1 led by
Joycelyn Pablo-Gualberto under Rule 45 of the Rules of Court, assailing the August 30,
2002, Decision 2 of the Court of Appeals (CA) in CA-GR SP No. 70878. The assailed
Decision disposed as follows:
"WHEREFORE, premises considered, the Petition for Certiorari is hereby
GRANTED. The assailed Order of May 17, 2002 is hereby SET ASIDE and
ANNULLED. The custody of the child is hereby ordered returned to [Crisanto
Rafaelito G. Gualberto V].
"The [respondent] court/Judge is hereby directed to consider, hear and
resolve [petitioner's] motion to lift the award of custody pendente lite of the child
to [respondent]." 3

The second is a Petition for Certiorari 4 led by Crisanto Rafaelito Gualberto V under
Rule 65 of the Rules of Court, charging the appellate court with grave abuse of discretion
for denying his Motion for Partial Reconsideration of the August 30, 2002 Decision. The
denial was contained in the CA's November 27 2002 Resolution, which we quote:
"We could not nd any cogent reason why the [last part of the dispositive
portion of our Decision of August 30, 2002] should be deleted, hence, subject
motion is hereby DENIED." 5

The Facts
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 The CA narrated the antecedents as follows:
. . . [O]n March 12, 2002, [Crisanto Rafaelito G. Gualberto V] filed before [the
Regional Trial Court of Parañaque City] a petition for declaration of nullity of his
marriage to . . . Joycelyn D. Pablo Gualberto, with an ancillary prayer for custody
pendente lite of their almost 4-year-old son, minor Rafaello (the child, for brevity),
whom [Joycelyn] allegedly took away with her from the conjugal home and his
school (Infant Toddler's Discovery Center in Parañaque City) when [she] decided
to abandon [Crisanto] sometime in early February 2002[:] . . . [O]n April 2, 2002,
[RTC Judge Helen B. Ricafort] heard the ancillary prayer of [Crisanto] for custody
pendente lite. . . . [B]ecause [Joycelyn] allegedly failed to appear despite notice,
[Crisanto], a certain Col. Renato Santos, and Ms. Cherry Batistel, testi ed before
the . . . Judge; . . . documentary evidence [was] also presented[.] . . . [O]n April 3,
2002, . . . [the] Judge awarded custody pendente lite of the child to [Crisanto.]
[T]he Order partly read . . .:

'. . . Crisanto Rafaelito Gualberto V testi ed. He stated that

[Joycelyn] took their minor child with her to Caminawit, San Jose,
Occidental Mindoro. At that time, the minor was enrolled at B.F. Homes,
Parañaque City. Despite effort[s] exerted by him, he has failed to see his
child. [Joycelyn] and the child are at present staying with the former's' step-
father at the latter's [residence] at Caminawit, San Jose, Occidental
Mindoro. AaCEDS

'Renato Santos, President of United Security Logistic testi ed that

he was commissioned by [Crisanto] to conduct surveillance on [Joycelyn]
and came up with the conclusion that [she] is having lesbian relations with
one Noreen Gay Cuidadano in Cebu City.

'The ndings of Renato Santos [were] corroborated by Cherry

Batistel, a house helper of the spouses who stated that [the mother] does
not care for the child as she very often goes out of the house and on one
occasion, she saw [Joycelyn] slapping the child.

'Art. 211 of the Family Code provides as follows:

'The father and the mother shall jointly exercise parental

authority over the persons of their children. In the case of
disagreement, the father's decision shall prevail, unless there is a
judicial order to the contrary.'

'The authority of the father and mother over their children is

exercised jointly. This recognition, however, does not place her in exactly
the same place as the father; her authority is subordinated to that of the
father.

'In all controversies regarding the custody of minors, the sole and
foremost consideration is the physical, educational, social and moral
welfare of the child, taking into account the respective resources and social
and moral situations of the contending parties.

'The Court believes that [Joycelyn] had no reason to take the child
with her. Moreover, per Sheriff returns, she is not with him at Caminawit,
San Jose, Occidental Mindoro.

'WHEREFORE, pendente lite, the Court hereby awards custody, of the

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 minor, Crisanto Rafaello P. Gualberto X to his father, Crisanto Rafaelito G.
Gualberto, V.'
". . . [O]n April 16, 2002, the hearing of [Joycelyn's] motion to lift the award
of custody pendente lite of the child to [Crisanto] was set but the former did not
allegedly present any evidence to support her motion. However, on May 17, 2002,
[the] Judge allegedly issued the assailed Order reversing her Order of April 3, 2002
and this time awarding custody of the child to [Joycelyn]. [T]he entire text of the
Order [is] herein reproduced, to wit:

'Submitted is [Crisanto's] Motion to Resolve Prayer for Custody

Pendente Lite and [Joycelyn's] Motion to Dismiss and the respective
Oppositions thereto.

'[Joycelyn], in her Motion to Dismiss, makes issue of the fact that

the person referred to in the caption of the Petition is one JOCELYN Pablo
Gualberto and not Joycelyn Pablo Gualberto. [Joycelyn] knows she is the
person referred to in the Complaint. As a matter of fact, the body of the
Complaint states her name correct[ly]. The law is intended to facilitate and
promote the administration of justice, not to hinder or delay it. Litigation
should be practicable and convenient. The error in the name of Joycelyn
does not involve public policy and has not prejudiced [her].
'This case was led on March 12, 2002. Several attempts were
made to serve summons on [Joycelyn] as shown by the Sheriff's returns. It
appears that on the 4th attempt on March 21, 2002, both Ma. Daisy and . . .
Ronnie Nolasco, [Joycelyn's mother and stepfather, respectively,] read the
contents of the documents presented after which they returned the same.
DHSEcI

'The Court believes that on that day, summons was duly served and
this Court acquired jurisdiction over [Joycelyn].
'The ling of [Joycelyn's annulment] case on March 26, 2002 was
an after thought, perforce the Motion to [D]ismiss should be denied.

'The child subject of this Petition, Crisanto Rafaello P. Gualberto is

barely four years old. Under Article 213 of the Family Code, he shall not be
separated from his mother unless the Court nds compelling reasons to
order otherwise. The Court nds the reason stated by [Crisanto] not [to] be
compelling reasons. The father should however be entitled to spend time
with the minor. These do not appear compelling reasons to deprive him of
the company of his child.
'When [Joycelyn] appeared before this Court, she stated that she has
no objection to the father visiting the child even everyday provided it is in
Mindoro.
'The Court hereby grants the mother, [Joycelyn], the custody of
Crisanto Rafaello P. Gualberto, with [the] right of [Crisanto] to have the
child with him every other weekend.

'WHEREFORE:
1. The [M]otion to Dismiss is hereby DENIED;

2. Custody pendente lite is hereby given to the mother

Joycelyn Pablo Gualberto with the right of the father, . . . [Crisanto],
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 to have him every other week-end.
3. Parties are admonished not to use any other agencies
of the government like the CIDG to interfere in this case and to
harass the parties.' " 6

In a Petition for Certiorari 7 before the CA, Crisanto charged the Regional Trial Court
(Branch 260) of Parañaque City with grave abuse of discretion for issuing its aforequoted
May 17, 2002 Order. He alleged that this Order superseded, without any factual or legal
basis, the still valid and subsisting April 3, 2002 Order awarding him custody pendente lite
of his minor son; and that it violated Section 14 of Article VII of the 1987 Constitution.
Ruling of the Court of Appeals
Partly in Crisanto's favor the CA ruled that grave abuse of discretion had been
committed by the trial court in reversing the latter court's previous Order dated April 3,
2002, by issuing the assailed May 17, 2002 Order. The appellate court explained that the
only incident to resolve was Joycelyn's Motion to Dismiss, not the issuance of the earlier
Order. According to the CA, the prior Order awarding provisional custody to the father,
should prevail, not only because it was issued after a hearing, but also because the trial
court did not resolve the correct incident in the later Order.
Nonetheless, the CA stressed that the trial court judge was not precluded from
considering and resolving Joycelyn's Motion to lift the award of custody pendente lite to
Crisanto, as that Motion had yet to be properly considered and ruled upon. However, it
directed that the child be turned over to him until the issue was resolved.
Hence, these Petitions. 8
Issues
In GR No. 154994, Petitioner Joycelyn submits these issues for our consideration:
"1. Whether or not the Respondent Court of Appeals, when it awarded
the custody of the child to the father, violated Art. 213 of the Family Code, which
mandates that 'no child under seven years of age shall be separated from the
mother, unless the court finds compelling reasons to order otherwise.'

"2. Is it Article 213 or Article 211 which applies in this case involving
four-year old Rafaello?" 9

On the other hand, Crisanto raises the following issues:

"A. Did Respondent Court commit grave abuse of discretion amounting
to or in excess of jurisdiction when, in its August 30, 2002 Decision, it ordered
respondent court/Judge 'to consider, hear and resolve the motion to lift award of
custody pendente lite of the child to petitioner and . . . denied the motion for
reconsideration thereof in its November 27, 2002 Resolution, considering that: (1)
there is no such motion ever, then or now pending, with the court a quo; (2) the
November 27, 2002 Resolution is unconstitutional; and (3) the April 3, 2002 Order
of respondent Judge, the validity of which has been upheld in the August 30,
2002 Decision of the respondent Court, has become final and executory; and HEDCAS

"B. Ought not the ancillary remedies [o]f habeas corpus, because the
whereabouts, physical and mental condition of the illegally detained Minor
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 Rafaello is now unknown to petitioner and preliminary mandatory injunction with
urgent prayer for immediate issuance of preliminary [injunction], petitioner having
a clear and settled right to custody of Minor Rafaello which has been violated and
still is being continuously violated by [petitioner Joycelyn], be granted by this
Honorable Court?" 1 0

Being interrelated, the procedural challenges and the substantive issues in the two
Petitions will be addressed jointly.
The Court's Ruling
There is merit in the Petition in GR No. 154994, but not in GR No. 156254.
Preliminary Issue:
The Alleged Prematurity
of the Petition in GR No. 154994
Before going into the merits of the present controversy, the Court shall rst dispose
of a threshold issue. In GR No. 154994, therein Respondent Crisanto contends that the
Petition for Review was led beyond the deadline (October 24, 2002) allowed by the Rules
of Court and by this Court. He claims that Registry Bill No. 88 shows that the Petition was
sent by speed mail, only on November 4, 2002. Furthermore, he, assails the Petition for its
prematurity, since his Motion for Partial Reconsideration of the August 30, 2002 CA
Decision was still pending before the appellate court. Thus, he argues that the Supreme
Court has no jurisdiction over Joycelyn's Petition.
Timeliness of the Petition
The manner of ling and service Joycelyn's Petition by mail is governed by Sections
3 and 7 of Rule 13 of the Rules of Court, which we quote:
"SEC. 3. Manner of ling . — The ling of pleadings, appearances,
motions, notices, orders, judgments and all other papers shall be made by
presenting the original copies thereof, plainly indicated as such personally to the
clerk of court or by sending them by registered mail. . . . In the second case, the
date of mailing of motions, pleadings and other papers or payments or deposits,
as shown by the post o ce stamp on the envelope or the registry receipt, shall be
considered as the date of their ling, payment, or deposit in court . The envelope
shall be attached to the records of the case.

xxx xxx xxx

"SEC. 7. Service by mail. — Service by registered mail shall be made by
depositing the copy in the o ce, in a sealed envelope, plainly addressed to the
party or his counsel at his o ce, if known, otherwise at his residence, if known,
with postage fully pre-paid, and with instructions to the postmaster to return the
mail to the sender after ten (10) days if undelivered. If no registry service is
available in the locality of either the sender of the addressee, service may be done
by ordinary mail. (Italics supplied)

The records disclose that Joycelyn received the CA's August 30, 2002 Decision on
September 9, 2002. On September 17, she led before this Court a Motion for a 30-day
extension of time to le a petition for review on certiorari. This Motion was granted, 1 1 and
the deadline was thus extended until October 24, 2002. EcICDT

A further perusal of the records reveals that copies of the Petition were sent to this
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 Court and to the parties by registered mail 1 2 at the Biñan, Laguna Post O ce on October
24, 2002. This is the date clearly stamped on the face of the envelope 1 3 and attested to in
the A davit of Service 1 4 accompanying the Petition. Petitioner Joycelyn explained that
the ling and the service had been made by registered mail due to the "volume of delivery
assignments and the lack of a regular messenger. " 1 5
The Petition is, therefore, considered to have been led on October 24, 2002, its
mailing date as shown by the post o ce stamp on the envelope. The last sentence of
Section 3 of Rule 13 of the Rules provides that the date of ling may be shown either by
the post o ce stamp on the envelope or by the registry receipt. Proof of its ling, on the
other hand, is shown by the existence of the petition in the record, pursuant to Section 12
of Rule 13. 1 6
The postmaster satisfactorily clari es that Registry Bill No. 88, which shows the
date November 2, 2002, merely discloses when the mail matters received by the Biñan
Post O ce on October 24, 2002, were dispatched or sent to the Central Mail Exchange for
distribution to their nal destinations. 1 7 The Registry Bill does not re ect the actual
mailing date. Instead, it is the postal Registration Book 1 8 that shows the list of mail
matters that have been registered for mailing on a particular day, along with the names of
the senders and the addressees. That book shows that Registry Receipt Nos. 2832-A and
2832-B, pertaining to the mailed matters for the Supreme Court, were issued on October
24, 2002.
Prematurity of the Petition
As to the alleged prematurity, of the Petition of Joycelyn, Crisanto points out that his
Urgent Motion for Partial Reconsideration 1 9 was still awaiting resolution by the CA when
she led her Petition before this Court on October 24, 2002. The CA ruled on the Motion
only on November 27, 2002.
The records show, however, that the Motion of Crisanto was mailed only on
September 12, 2002. Thus on September 17, 2002, when Joycelyn led her Motion for
Extension of Time to le her Petition for Review, she might have still been unaware that he
had moved for a partial reconsideration of the August 20, 2002 CA Decision. Nevertheless,
upon being noti ed of the ling of his Motion, she should have manifested that fact to this
Court.
With the CA's nal denial of Crisanto's Motion for Reconsideration, Joycelyn's lapse
may be excused in the interest of resolving the substantive issues raised by the parties.
First Issue:
Grave Abuse of Discretion
In GR No. 156254, Crisanto submits that the CA gravely abused its discretion when
it ordered the trial court judge to "consider, hear and resolve the motion to lift the award of
custody pendente lite" without any proper motion by Joycelyn and after the April 3, 2002
Order of the trial court had become nal and executory. The CA is also charged with grave
abuse of discretion for denying his Motion for Partial Reconsideration without stating the
reasons for the denial, allegedly in contravention of Section 1 of Rule 36 of the Rules of
Court.
The Order to Hear the Motion
to Lift the Award of Custody
Pendente Lite Proper
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 To begin with, grave abuse of discretion is committed when an act is 1) done
contrary to the Constitution, the law or jurisprudence; 2 0 or 2) executed "whimsically or
arbitrarily" in a manner "so patent and so gross as to amount to an evasion of a positive
duty, or to a virtual refusal to perform the duty enjoined." 2 1 What constitutes grave abuse
of discretion is such capricious and arbitrary exercise of judgment as that which is
equivalent, in the eyes of the law, to lack of jurisdiction. 2 2
On the basis of these criteria, we hold that the CA did not commit grave abuse of
discretion. SaCDTA

First, there can be no question that a court of competent jurisdiction is vested with
the authority to resolve even unassigned issues. It can do so when such a step is
indispensable or necessary to a just resolution of issues raised in a particular pleading or
when the unassigned issues are inextricably linked or germane to those that have been
pleaded. 2 3 This truism applies with more force when the relief granted has been
specifically prayed for, as in this case.
Explicit in the Motion to Dismiss 2 4 led by Joycelyn before the RTC is her ancillary
prayer for the court to lift and set aside its April 3, 2002 Order awarding to Crisanto
custody pendente lite of their minor son. Indeed, the necessary consequence of granting
her Motion to Dismiss would have been the setting aside of the Order awarding Crisanto
provisional custody of the child. Besides, even if the Motion to Dismiss was denied — as
indeed it was — the trial court, in its discretion and if warranted, could still have granted the
ancillary prayer as an alternative relief.
Parenthetically, Joycelyn's Motion need not have been veri ed because of the
provisional nature of the April 3, 2002 Order. Under Rule 38 2 5 of the Rules of Court,
veri cation is required only when relief is sought from a nal and executory Order.
Accordingly, the court may set aside its own orders even without a proper motion,
whenever such action is warranted by the Rules and to prevent a miscarriage of justice. 2 6
Denial of the Motion for
Reconsideration Proper
Second, the requirement in Section 1 of Rule 36 (for judges to state clearly and
distinctly the reasons for their dispositions) refers only to decisions and final orders on the
merits, not to those resolving incidental matters. 2 7 The provision reads:
"SECTION 1. Rendition of judgments and nal orders . — A judgment or
nal order determining the merits of the case shall be in writing personally and
directly prepared by the judge, stating clearly and distinctly the facts and the law
on which it is based, signed by him, and led with the clerk of court." (Italics
supplied).

Here, the declaration of the nullity of marriage is the subject of the main case, in
which the issue of custody pendente lite is an incident. That custody and support of
common children may be ruled upon by the court while the action is pending is provided in
Article 49 of the Family Code, which we quote:
"Art. 49. During the pendency of the action 2 8 and in the absence of
adequate provisions in a written agreement between the spouses, the Court shall
provide for the support of the spouses and the custody and support of their
common children. . . ."
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 Clearly then, the requirement cited by Crisanto is inapplicable. In any event, in its
questioned Resolution, the CA clearly stated that it "could not nd any cogent reason" to
reconsider and set aside the assailed portion of its August 30, 2002 Decision.
The April 3, 2002 Order Not
Final and Executory
Third, the award of temporary custody, as the term implies, is provisional and
subject to change as circumstances may warrant. In this connection, there is no need for a
lengthy discussion of the alleged nality of the April, 3, 2002 RTC Order granting Crisanto
temporary custody of his son. For that matter, even the award of child custody after a
judgment on a marriage annulment is not permanent; it may be reexamined and adjusted if
and when the parent who was given custody becomes unfit. 2 9
Second Issue:
Custody of a Minor Child
When love is lost between spouses and the marriage inevitably results in separation,
the bitterest tussle is often over the custody of their children. The Court is now tasked to
settle the opposing claims of the parents for custody pendente lite of their child who is
less than seven years old. 3 0 On the one hand, the mother insists that, based on Article 213
of the Family Code, her minor child cannot be separated from her. On the other hand, the
father argues that she is "un t" to take care of their son; hence, for "compelling reasons,"
he must be awarded custody of the child. CAIHaE

Article 213 of the Family Code 3 1 provides:

"ART. 213. In case of separation of the parents, parental authority shall
be exercised by the parent designated by the court. The court shall take into
account all relevant considerations, especially the choice of the child over seven
years of age, unless the parent chosen is unfit.
No child under seven years of age shall be separated from the mother,
unless the court finds compelling reasons to order otherwise."

This Court has held that when the parents are separated, legally or otherwise, the
foregoing provision governs the custody of their child. 3 2 Article 213 takes its bearing from
Article 363 of the Civil Code, which reads:
"Art. 363. In all questions on the care, custody, education and property
of children, the latter's welfare shall be paramount. No mother shall be separated
from her child under seven years of age, unless the court nds compelling
reasons for such measure." (Italics supplied)
The general rule that children under seven years of age shall not be separated from
their mother nds its raison d'etre in the basic need of minor children for their mother's
loving care. 3 3 In explaining the rationale for Article 363 of the Civil Code, the Code
Commission stressed thus:
"The general rule is recommended in order to avoid a tragedy where a
mother has seen her baby torn away from her. No man can sound the deep
sorrows of a mother who is deprived of her child of tender age. The exception
allowed by the rule has to be for 'compelling reasons' for the good of the child:
those cases must indeed be rare, if the mother's heart is not to be unduly hurt. If
she has erred, as in cases of adultery, the penalty of imprisonment and the
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 (relative) divorce decree will ordinarily be su cient punishment for her. Moreover,
her moral dereliction will not have any effect upon the baby who is as yet unable
to understand the situation." (Report of the Code Commission, p. 12)

A similar provision is embodied in Article 8 of the Child and Youth Welfare Code
(Presidential Decree No. 603). 3 4 Article 17 of the same Code is even more explicit in
providing for the child's custody under various circumstances, speci cally in case the
parents are separated. It clearly mandates that "no child under ve years of age shall be
separated from his mother, unless, the court nds compelling reasons to do so." The
provision is reproduced in its entirety as follows:
"Art. 17. Joint Parental Authority. — The father and the mother shall
exercise jointly just and reasonable parental authority and responsibility over their
legitimate or adopted children. In case of disagreement, the father's decision shall
prevail unless there is a judicial order to the contrary.
"In case of the absence or death of either parent, the present or surviving
parent shall continue to exercise parental authority over such children, unless in
case of the surviving parent's remarriage, the court for justi able reasons,
appoints another person as guardian.
"In case of separation of his parents, no. child under ve years of age shall
be separated from his mother, unless the court nds compelling reasons to do
so." (Italics supplied)
The above mandates reverberate in Articles 211, 212 and 213 of the Family Code. It
is unmistakable from the language of these provisions that Article 211 3 5 was derived
from the rst sentence of the aforequoted Article 17; Article 212, 3 6 from the second
sentence; and Article 213, 3 7 save for a few additions from the third sentence. It should be
noted that the Family Code has reverted to the Civil Code provision mandating that a child
below seven years should not be separated from the mother. 3 8
Mandatory Character
of Article 213 of the Family Code
In Lacson v. San Jose-Lacson , 3 9 the Court held that the use of "shall" in Article 363
of the Civil Code and the observations made by the Code Commission underscore the
mandatory character of the word. 4 0 Holding in that case that it was a mistake to deprive
the mother of custody of her two children, both then below the age of seven, the Court
stressed:
"[Article 363] prohibits in no uncertain terms the separation of a mother
and her child below seven years, unless such a separation is grounded upon
compelling reasons as determined by a court." 4 1

In like manner, the word "shall" in Article 213 of the Family Code and Section 6 4 2 of
Rule 99 of the Rules of Court has been held to connote a mandatory character. 4 3 Article
213 and Rule 99 similarly contemplate a situation in which the parents of the minor are
married to each other, but are separated by virtue of either a decree of legal separation or
a de facto separation. 4 4 In the present case, the parents are living separately as a matter
of fact.
The Best Interest of the Child
a Primary Consideration

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 The Convention on the Rights of the Child provides that "[i]n all actions concerning
children, whether undertaken by public or private social welfare institutions, courts of law,
administrative authorities or legislative bodies the best interests of the child shall be a
primary consideration." 4 5
The principle of "best interest of the child" pervades Philippine cases involving
adoption, guardianship, support, personal status, minors in con ict with the law, and child
custody. In these cases, it has long been recognized that in choosing the parent to whom
custody is given, the welfare of the minors should always be the paramount consideration.
4 6 Courts are mandated to take into account all relevant circumstances that would have a
bearing on the children's well-being and development. Aside from the material resources
and the moral and social situations of each parent, other factors may also be considered
to ascertain which one has the capability to attend to the physical, educational, social and
moral welfare of the children. 4 7 Among these factors are the previous care and devotion
shown by each of the parents; their religious background, moral uprightness, home
environment and time availability; as well as the children's emotional and educational
needs.
Tender Age
Presumption
As pointed out earlier, there is express statutory recognition that, as a general rule, a
mother is to be preferred in awarding custody of children under the age of seven. The
caveat in Article 213 of the Family Code cannot be ignored, except when the court nds
cause to otherwise. 4 8
The so-called "tender-age presumption" under Article 213 of the Family Code may be
overcome only by compelling evidence of the mother's un tness. The mother has been
declared unsuitable to have custody of her children in one or more of the following
instances: neglect, abandonment, unemployment, immorality, habitual drunkenness, drug
addiction, maltreatment of the child, insanity or affliction with a communicable disease. 4 9
Here, Crisanto cites immorality due to alleged lesbian relations as the compelling
reason to deprive Joycelyn of custody. It has indeed been held that under certain
circumstances, the mother's immoral conduct may constitute a compelling reason to
deprive her of custody. 5 0
But sexual preference or moral laxity alone does not prove parental neglect or
incompetence. Not even the fact that a mother is a prostitute or has been unfaithful to her
husband would render her unfit to have custody of her minor child. 5 1 To deprive the wife of
custody, the husband must clearly establish that her moral lapses have had an adverse
effect on the welfare of the child or have distracted the offending spouse from exercising
proper parental care. 5 2 HSDaTC

To this effect did the Court rule in Unson III v. Navarro , 5 3 wherein the mother was
openly living with her brother-in-law, the child's uncle. Under that circumstance, the Court
deemed it in the nine-year-old child's best interest to free her "from the obviously
unwholesome, not to say immoral in uence, that the situation in which the mother ha[d]
placed herself might create in [the child's] moral and social outlook." 5 4

I n Espiritu v. CA , 5 5 the Court took into account psychological and case study
reports on the child, whose feelings of insecurity and anxiety had been traced to strong
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 con icts with the mother. To the psychologist the child revealed, among other things, that
the latter was disturbed upon seeing "her mother hugging and kissing a 'bad' man who
lived in their house and worked for her father." The Court held that the "illicit or immoral
activities of the mother had already caused the child emotional disturbances, personality
conflicts, and exposure to conflicting moral values . . ."
Based on the above jurisprudence, it is therefore not enough for Crisanto to show
merely that Joycelyn was a lesbian. He must also demonstrate that she carried on her
purported relationship with a person of the same sex in the presence of their son or under
circumstances not conducive to the child's proper moral development. Such a fact has not
been shown here. There is no evidence that the son was exposed to the mother's alleged
sexual proclivities or that his proper moral and psychological development suffered as a
result.
Moreover, it is worthy to note that the trial court judge, Helen Bautista-Ricafort, ruled
in her May 17, 2002, Order, that she had found the "reason stated by [Crisanto] not to be
compelling" 5 6 as to su ce as a ground for separating the child from his mother. The
judge made this conclusion after personally observing the two of them, both in the
courtroom and in her chambers on April 16, 2002, and after a chance to talk to the boy and
to observe him firsthand. This assessment, based on her unique opportunity to witness the
child's behavior in the presence of each parent, should carry more weight than a mere
reliance on the records. All told, no compelling reason has been adduced to wrench the
child from the mother's custody.
No Grant of Habeas Corpus
and Preliminary Injunction
As we have ruled that Joycelyn has the right to keep her minor son in her custody,
the writ of habeas corpus and the preliminary mandatory injunction prayed for by Crisanto
have no leg to stand on. A writ of habeas corpus may be issued only when the "rightful
custody of any person is withheld from the person entitled thereto," 5 7 a situation that does
not apply here.
On the other hand, the ancillary remedy of preliminary mandatory injunction cannot
be granted, because Crisanto's right to custody has not been proven to be "clear and
unmistakable." 5 8 Unlike an ordinary preliminary injunction, the writ of preliminary
mandatory injunction is more cautiously regarded, since the latter requires the
performance of a particular act that tends to go beyond the maintenance of the status
quo. 5 9 Besides, such an injunction would serve no purpose, now that the case has been
decided on its merits. 6 0
WHEREFORE, the Petition in GR No. 154994 is GRANTED. The assailed Decision of
the Court of Appeals is hereby REVERSED and the May 17, 2002 Regional Trial Court Order
REINSTATED. The Petition in GR No. 156254 is DISMISSED. Costs against Petitioner
Crisanto Rafaelito Gualberto V. DHECac

SO ORDERED.
Sandoval-Gutierrez, Corona, Carpio Morales and Garcia, JJ., concur.

Footnotes

1. GR No. 154994 rollo, pp. 9-78.

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 2. Id., pp. 80-86. Twelfth Division. Penned by Justice Edgardo F. Sundiam and concurred in
by Justices Portia Aliño-Hormachuelos (Division chair) And Elvi John S. Asuncion
(member).

3. Assailed CA Decision, p. 7; GR No. 154994; rollo, p. 86.

4. GR No. 156254 rollo, pp. 3-32.

5. Assailed CA Resolution, p. 1; GR No. 156254; rollo, p. 34.

6. CA Decision, pp. 1-4; GR No. 154994; rollo, pp. 80-83. Citations omitted.

7. GR No. 154994 rollo, pp. 88-118; GR. No. 156254; rollo, pp. 73-103.

8. The two cases were consolidated on October 13, 2004. They were deemed submitted for
decision on June 14, 2004, upon the Court's receipt of Joycelyn Gualberto's
Memorandum in GR No. 156254, signed by Atty. German A. Gineta. Crisanto Gualberto
V's Memorandum, signed by Atty. Reynaldo B. Aralar, was filed on June 4, 2004.

In GR No. 154994, Joycelyn's Memorandum, also signed by Atty. Gineta, was received
by the Court on May 8, 2003. Crisanto's Memorandum and Reply Memorandum, also
signed by Atty. Aralar, were filed on May 5, 2003 and May 16, 2003, respectively.

9. Joycelyn Gualberto's Memorandum, p. 7; GR No. 154994 rollo, p. 320.

10. Crisanto Gualberto's Memorandum, pp. 11-12; GR No. 156254; rollo p. 371-372.
11. SC Resolution dated October 7, 2002; rollo, p. 7.

12. Under Registry Receipt Nos. 2832-A and 2832-B for the Supreme Court, 2831 for the CA,
2830 for the Office of the Solicitor General, 2892 for the RTC Judge, and 2828 for private
respondent's counsel; per Certification dated December 3, 2002, issued by the Biñan
postmaster (GR No. 154994; rollo, p. 277) and Certified True Copy of the Registration
Book (id., pp. 279-280). These documents are attached as Annexes "1" and "3" to
Joycelyn's Motion to Allow and Admit Comment/Opposition [Re; (Crisanto's) Motion to
Dismiss] and Manifestation before this Court.

13. GR No. 154994; rollo, p. 242.

14. Id., p. 78: The Affidavit was executed by one Michael John M. Armuete.
15. Ibid. §11 of Rule 13 provides that a resort to modes of service other than personal
service "must be accompanied by a written explanation why the service or filing was not
done personally"; and that "'[v]iolation thereof may be cause to consider the paper as not
filed."

16. §12 of Rule 13 of the Rules of Court provides:

"SEC. 12. Proof of filing. — The filing of a pleading or paper shall be proved by its
existence in the record of the case. If it is not in the record, but is claimed to have been
filed personally, the filing shall be proved by the written or stamped acknowledgment of
its filing by the clerk of court on a copy of the same; if filed by registered mail, by the
registry receipt and by the affidavit of the person who did the mailing, containing a full
statement of the date and place of depositing the mail in the post office in a sealed
envelope addressed to the court, with postage fully prepaid, and with instructions to the
postmaster to return the mail to the sender after ten (10) days if not delivered." (Italics
supplied)
17. Letter of Biñan Postmaster Jose M. Espineli dated December 4, 2002; GR No. 154994;
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 rollo, p. 281.
18. Supra.
19. GR No. 156254; rollo, pp. 44-51.
20. Republic v. COCOFED , 423 Phil. 735, 774, December 14, 2001.
21. Baylon v. Office of the Ombudsman, 423 Phil. 705, 720, December 14, 2001; Benito v.
Comelec, 349 SCRA 705, 713-714, January 19, 2001; Defensor-Santiago v. Guingona Jr.,
359 Phil. 276, 304, November 18, 1998, and Philippine Airlines, Inc. v. Confesor, 231
SCRA 41, 53, March 10, 1994.
22. Vda. de Bacaling v. Laguna, 54 SCRA 243, 25 December 18, 1973.
23. Ludo & Luym Corp. v. CA, 351 SCRA 35, 40, February 1, 2001; Logronio v. Talaseo, 370
Phil. 907, 910 & 917, August 6, 1999 (citing Hernandez v. Andal, 78 Phil. 196, 209-210,
March 29, 1947); Sesbreño v. Central Board of Assessment Appeals, 337 Phil. 89, 100,
March 24, 1997.

24. GR No. 154994 rollo, pp. 232-236. Among others, Joycelyn prayed that "the Order of this
Honorable Court dated April 3, 2002, awarding custody of minor Crisanto Rafaello P.
Gualberto X to [the father] be lifted and set aside and [a] new one issued maintaining the
status quo."
25. §§1 and 3 of Rule 38 of the Rules of Court pertinently provides:

"SEC. 1. Petition for relief from judgment, order, or other proceedings. — When a
judgment or final order is entered, or any other proceeding is thereafter taken against a
party in any court through fraud, accident, mistake, or excusable negligence, he may file
a petition in such court and in the same case praying that the judgment, order or
proceedings be set aside."

"SEC. 3. Time for filing petition; contents and verification. — A petition provided for in
either of the preceding sections of this Rule must be verified, filed within sixty (60) days
after the petitioner learns of the judgment, final order, or other proceeding to be set aside
and not more than six (6) months after such judgment or final order was entered, or such
proceeding was taken; . . ." (Italics supplied)

26. Manongdo v. Vda. de Albano, 95 SCRA 88, 98, January 22, 1980.
27. Borromeo v. CA, 186 SCRA 1, 6, June 1, 1990; Mendoza v. CFI, 51 SCRA 369, 375, June
27, 1973; Bacolod Murcia Milling Co., Inc. v. Henare, 107 Phil. 560, 570, March 30, 1960.

28. The action here refers to the annulment of marriage under Article 45 of the Family
Code.
29. Unson III v. Navarro, 101 SCRA 183, 189, November 17, 1980 (cited in Espiritu v. CA, 312
Phil. 431, 440, March 15, 1995).

30. Crisanto Rafaello X was born on September 11, 1998. Exhibit "C," Certificate of Birth,
Records of GR 154994, p. 11.
31. Executive Order No. 209.

32. Perez v. CA, 325 Phil. 1014, 1021, March 29, 1996.
33. Espiritu v. CA, supra, p. 366.

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 34. Article 8 of PD No. 603:

"Art. 8. Child's welfare paramount. — In all questions regarding the care, custody,
education and property of the child, his welfare shall be the paramount consideration."

35. Article 211 of the Family Code:

"Art. 211. The father and the mother shall jointly exercise parental authority over the
persons of their common children. In case of disagreement, the father's decision shall
prevail, unless there is a judicial order to the contrary.

"Children shall always observe respect and reverence towards their parents and are
obliged to obey them as long as the children are under parental authority."
36. Article 212 of the Family Code:

"Art. 212. In case of absence or death of either parent, the parent present shall
continue exercising parental authority. The remarriage of the surviving parent shall not
affect the parental authority over the children, unless the court appoints another person
to be the guardian of the person or property of the children."
37. The Article is worded as follows:

"Art. 213. In case of separation of the parents, parental authority shall be exercised by
the parent designated by the court. The Court shall take into account all relevant
considerations, especially the choice of the child over seven years of age, unless the
parent chosen is unfit.

"No child under seven years of age shall be separated from the mother unless the
court finds compelling reasons to order otherwise."
38. See Sempio-Diy, Handbook on the Family Code of the Philippines (1988), pp. 296-297.
39. 133 Phil. 884, 894, August 30, 1968.
40. The Court in this case emphasized that under ordinary parlance and in its ordinary
signification, the term "shall" is a word of command; one that is generally imperative or
mandatory; and that which "operates to impose a duty which may be enforced,
particularly if public policy is in favor of its meaning or when public interest is involved. .
. ."
41. P. 895, per Castro, J.

42. "SEC. 6. Proceedings as to child whose parents are separated. Appeal. — When
husband and wife are divorced or living separately and apart from each other, and the
question as to the care, custody, and control of a child or children of their marriage is
brought before a Court of First Instance by petition or as an incidence to any other
proceeding, the court, upon hearing the testimony as may be pertinent, shall award the
care, custody, and control of each such child as will be for its best interest, permitting the
child to choose which parent it prefers to live with if it be over ten years of age, unless
the parent so chosen be unfit to take charge of the child by reason of moral depravity,
habitual drunkenness, incapacity, or poverty. If, upon such hearing, it appears that both
parents are improper persons to have the care, custody, and control of the child, the court
may either designate the paternal or maternal grandparents of the child, or his oldest
brother or sister, or some reputable and discreet person to take charge of such child, or
commit it to any suitable asylum, children's home, or benevolent society. The court may
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 in conformity with the provisions of the Civil Code order either or both parents to support
or help support said child, irrespective of who may be its custodian, and may make any
order that is just and reasonable permitting the parent who is deprived of its care and
custody to visit the child or have temporary custody thereof. Either parent may appeal
from an order made in accordance with the provisions of this section. No child under
seven years of age shall be separated from its mother, unless the court finds there are
compelling reasons therefor."
43. Perez v. CA, supra, p. 1022.
44. Briones v. Miguel, GR No. 156343, October 18, 2004, p. 13.
45. §1 of Article 31 of the Convention on the Rights of the Child (CRC).

46. Tonog v. CA, 427 Phil. 1, 7, February 7, 2002; Artadi-Bondagiy v. Bondagiy, 423 Phil.
127, 136, 138, December 7, 2001; Perez v. CA, supra, p 1024, Espiritu v. CA, supra, p. 437;
Medina v. Makabali, 137 Phil. 329, 331, March 28, 1969; Slade Perkins v. Perkins, 57
Phil. 217, 219, September 12, 1932.
47. Bondagiy v. Bondagiy, supra; David v. CA, 320 Phil. 138, November 16, 1995; Espiritu v.
CA; supra; Unson v. Navarro supra; Cervantes v. Fajardo, 169 SCRA 575, January 27,
1989.
48. Briones v. Miguel, supra, p. 12.
49. See among others, Briones v. Miguel, supra; Tonog v. CA, supra; Cervantes v. Fajardo,
supra; Medina v. Makabali, supra. See also Tolentino, Civil Code, (1990), p. 609; Sempio-
Diy, supra, p. 297.
50. Espiritu v. CA, supra; Cervantes v. Fajardo, supra; Unson III v. Navarro, supra; Cortes v.
Castillo, 41 Phil. 466, March 18, 1921.
51. Sempio-Diy, supra, p. 297.

52. 70 ALR 3d 262, Ch. I, §2[b].

53. Supra.
54. P. 189, per Barredo, J.
55. Supra, p. 440, per Melo, J.
56. Order dated May 17, 2002, p. 2; GR No. 154994; rollo, p. 120.

57. §1 of Rule 102 of the Rules of Court, which provides as follows:

"Sec. 1. To what habeas corpus extends. — Except as otherwise expressly provided by
law, the writ of habeas corpus shall extend to all cases of illegal confinement or
detention by which any person is deprived of his liberty, or by which the rightful custody
of any person is withheld from the person entitled thereto."(Italics supplied)
58. As held in Pelejo v. Court of Appeals, 117 SCRA 665, 668, October 18, 1982, the
issuance of a writ of preliminary mandatory injunction is justified only when the
following are shown: 1) the complainant has a clear legal right; 2) that right has been
violated and the invasion is material and substantial; and 3) there is an urgent and
permanent necessity for the writ to prevent serious damage. See also Spouses Crystal v.
Cebu International School, 356 SCRA 296, 305, April 4, 2001; Heirs of Asuncion v.
Gervacio Jr., 363 Phil. 666, 674, March 9, 1999; Suico Industrial Corporation v. CA, 361
Phil. 160, 169-170, January 20, 1999 (citing Arcega v. CA, 341 Phil. 166, 171, July 7,
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 1997).
59. Spouses Crystal v. Cebu International School, ibid.; Prosperity Credit Resources, Inc. v.
CA, 361 Phil. 30, 37, January 15, 1999 (citing Manila Electric Railroad and Light
Company v. Del Rosario, 22 Phil. 433, 437, March 29, 1912 and Bautista v. Barcelona,
100 Phil. 1078, 1081, March 29, 1957).

60. Under Section 1 of Rule 58 of the Rules of Court, preliminary injunction is defined as
"an order granted at any stage of an action or proceeding prior to the judgment or final
order, requiring a party or a court, agency or a person to refrain from a particular act or
acts. It may also require the performance of a particular act or acts, in which case it shall
be known as a preliminary mandatory injunction." (Emphasis supplied.) See Miriam
College Foundation Inc. v. CA, 348 SCRA 265, 277, December 15, 2000; Spouses Lopez v.
CA, 379 Phil. 743, 749-750, January 20, 2000; Paramount Insurance Corporation v. CA,
369 Phil. 641, 648, July 19, 1999.

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